Ninth Circuit Affirms SORNA Conviction of Former Northern Cheyenne Indian Reservation Resident (UPDATED)

Here is the opinion in United States v. Elk Shoulder.

Update — here are the briefs:

Elk Shoulder Opening Brief

USA Answer Brief

Elk Shoulder Supplemental Brief

USA Supplemental Brief

Here is the Fifth Circuit opinion with which the CA9 disagrees:

US v Kebodeaux CA5 Opinion

Does Michigan v. Bay Mills Create a Circuit Split with Mescalero v. New Mexico over Whether IGRA Waives Tribal Immunity?

Well, maybe, but it probably doesn’t matter because of State of Michigan’s amended complaint below.

Yesterday the Sixth Circuit held the Indian tribal immunity survives the enactment of the Indian Gaming Regulatory Act for cases in which a non-federal party with standing sues the tribe for alleged violations of the Act. The court criticized the Tenth Circuit’s holding Mescalero Apache Tribe v. New Mexico (PDF) that IGRA does waive tribal immunity:

Mescalero offers virtually no analysis in support of its contrary reading of § 2710(d)(7)(A)(ii)—a point which the State, to its credit, concedes here; and to the extent the opinion does offer any analysis, it mistakenly cites waiver cases rather than abrogation ones. We agree with the Eleventh Circuit, therefore, that Mescalero’s reasoning is “muddled” rather than persuasive.

The CA6 cited the CA11, also critical of the Tenth Circuit’s holding. In Florida v. Seminole Tribe (PDF), the court also criticized the Mescalero holding:

As an initial matter, we find that Mescalero provides no support for the State’s argument. The Mescalero panel, in discussing section 2710(d)(7)(A)(ii), claimed that a majority of courts agree that “IGRA [abrogated] tribal sovereign immunity in the narrow category of cases where compliance with IGRA’s provisions is at issue and where only declaratory or injunctive relief is sought.” 131 F.3d at 1385. In actuality, however, the cases that the panel cited in support of its claim addressed an entirely different matter, to wit: whether a tribe voluntarily waives its own sovereign immunity by engaging in gaming under IGRA. See infra part II.A.2 (discussing tribal waiver of immunity). In light of this absence of supporting authority, we find the Mescalero panel’s claim difficult to credit.

So one circuit has held that IGRA waives tribal immunity, and two circuits expressly disagree with the first circuit. Circuit split, right? Get ready for Michigan v. Bay Mills Indian Community in the Supreme Court?

Well, probably not. If the Tenth Circuit’s decision is so patently wrong (and mind you, it didn’t have the benefit of any other cases upon which to rely), it probably doesn’t matter. If confronted with the same question again, one could predict the Tenth Circuit going the other way. This is why the Supreme Court doesn’t take questions of first impression very often. They like to let things percolate in the lower courts. Whether IGRA waives tribal immunity is still percolating. The Tenth Circuit is looking like an obvious outlier decision that won’t be repeated. I’d guess, if anyone made the effort, that a Supreme Court cert petition would be denied.

Government Acquiesces in Arctic Slope v. Sebelius Cert Petition

Here is that brief:

Government Response Brief

The government conceded a circuit split. The SG also states that the government will be filing a cert petition in a parallel case — Ramah Navajo Chapter v. Salazar — but perhaps since that case is a class action, the OSG argues that the Arctic Slope case would be a better vehicle.

Here is that petition:

Salazar v. Ramah Navajo Chapter Cert Petition

Tenth Circuit Denies En Banc Petition in Ramah

Here is that order:

Order Denying Petition for Rehearing

And the briefs:

USA En Banc Petition

OST, Ramah, and Zuni Response

The panel opinion and briefs are available here.

And so the circuit split with the Federal Circuit is complete.

Cert Petition in Arctic Slope v. Sebelius (II)

It will be interesting to see what the OSG does with this. The last time a circuit split developed in similar circumstances, the government brought a cert petition and essentially concurred with the tribal cert petition (Cherokee Nation v. Leavitt).

Here are the materials:

Arctic Slope 2 Pet (2011)

Arctic Slope II Pet Appendix

Here is the question presented:

Whether the Federal Circuit erred in holding, in direct conflict with the Tenth Circuit, that a government contractor which has fully performed its end of the bargain has no remedy when a government agency overcommits itself to other projects and, as a result, does not have enough money left in its annual appropriation to pay the contractor.

Here are the lower court materials.

And here are the materials in Ramah, the Tenth Circuit case that generates the circuit split.

New Scholarship on Major Crimes Act Prosecutions and Race

Brian L. Lewis has published his excellent paper, “Do You Know What You Are? You Are What You Is; You Is What You Am: Indian Status for the Purpose of Federal Criminal Jurisdiction and the Current Split in the Court of Appeals,” in the Harvard Journal on Racial and Ethnic Justice (formerly the Harvard BlackLetter Law Journal).

Paper here: Lewis

The paper delves into the recent cases involving Indian status of criminal defendants prosecuted under the Major Crimes Act; and recent cases such as Cruz and Stymiest, where the Ninth and Eighth Circuits, respectively, reached conflicting conclusions on whether nonenrolled Indians are “Indian” under the statute.

Who is an Indian under the Major Crimes Act?

The Eighth Circuit’s decision that Matthew Stymiest is an “Indian” under 18 U.S.C. 1153(a) raises possible constitutional questions about due process and vagueness of a criminal statute, and it may be ripe for review by the Supreme Court as a circuit split.

Federal courts have adopted common law “tests” to determine whether a person charged under the statute is an Indian — they have to be in order to be convicted. The Eighth Circuit’s test lists a series of factors for a jury to consider in determining whether the defendant is an Indian.

Stymiest is a descendant of Leech Lake Band members, but he does not have the blood quantum to be eligible for membership himself. He often held himself out to be an Indian when it was to his advantage, such as when he was seeking Indian health clinic services, or in earlier criminal debacles where he probably thought it was to his advantage. But the local IHS people often asked him to produce some ID, which of course he never could. So is he an Indian? Hmmm.

And the wild thing about all of this is that under the statute, a jury of non-Indians (likely) will decide on these facts whether or not defendants like Stymiest are Indians beyond a reasonable doubt. As a matter of law, it is improbable that a jury can make a finding of “Indianness” under such a standard.

The Stymiest case likely conflicts in large part with the Ninth Circuit’s recent decision in United States v. Cruz. There, the court held that Christopher Cruz was not an Indian, despite being nearly quarter blood, although ineligible for tribal membership with the Blackfeet Nation. He worked for the BIA, spent several years of his childhood on the reservation, is eligible for some IHS and treaty hunting and fishing benefits, and was even once prosecuted in tribal court for a minor violation. In other words, Cruz is spectacularly similar to Stymiest.

Cruz isn’t an Indian under the Major Crimes Act, but Stymiest is. There’s a problem here.

Continue reading

Harjo v. Pro-Football, Inc. Cert Petition

Here it is — Harjo Petition for Writ of Certiorari

The question presented:

The United States District Court for the
District of Columbia reversed the Trademark Trial
and Appeal Board’s order scheduling cancellation of
the disputed marks and granted summary judgment
to Pro-Football, Inc., finding that the doctrine of
laches precluded consideration of Petitioners’
cancellation petition brought pursuant to Section
14(3) of the Lanham Act, 15 U.S.C. § 1064(3). On
appeal, a panel of the District of Columbia Circuit
agreed and, after a remand, ultimately affirmed the
District Court’s decision in full. The District of
Columbia Circuit’s decision and the Federal Circuit’s
decision in Bridgestone/Firestone Research, Inc. v.
Auto. Club De L’Ouest De La France, 245 F.3d 1359,
1360-61 (Fed. Cir. 2001), are in conflict with the
holding of the Court of Appeals for the Third Circuit
in Marshak v. Treadwell, 240 F.3d 184 (3d Cir. 2001)
(Alito, J.), that petitions made pursuant to Section
14(3) may be filed “at any time,” rendering defenses
such as laches and statutes of limitation
inapplicable.
A single question is presented for review:
1. Whether the doctrine of laches is applicable
to a cancellation petition filed pursuant to Section
1064(3) of the Lanham Act despite the plain
meaning of the statutory language stating that such
a petition may be filed “at any time.”

The United States District Court for the District of Columbia reversed the Trademark Trial and Appeal Board’s order scheduling cancellation of the disputed marks and granted summary judgment to Pro-Football, Inc., finding that the doctrine of laches precluded consideration of Petitioners’ cancellation petition brought pursuant to Section 14(3) of the Lanham Act, 15 U.S.C. § 1064(3). On appeal, a panel of the District of Columbia Circuit agreed and, after a remand, ultimately affirmed the District Court’s decision in full. The District of Columbia Circuit’s decision and the Federal Circuit’s decision in Bridgestone/Firestone Research, Inc. v. Auto. Club De L’Ouest De La France, 245 F.3d 1359, 1360-61 (Fed. Cir. 2001), are in conflict with the holding of the Court of Appeals for the Third Circuit in Marshak v. Treadwell, 240 F.3d 184 (3d Cir. 2001) (Alito, J.), that petitions made pursuant to Section 14(3) may be filed “at any time,” rendering defenses such as laches and statutes of limitation inapplicable.

A single question is presented for review:

1. Whether the doctrine of laches is applicable to a cancellation petition filed pursuant to Section 1064(3) of the Lanham Act despite the plain meaning of the statutory language stating that such a petition may be filed “at any time.”

Harjo v. Redskins Case Has Potential for Supreme Court

Or so says this IP firm’s website, which asserts that there is a trademark-related circuit split:

We do not believe that the issues raised in this case are going away. In the
first place, there is considerable question as to the correctness of the rulings by the District
Court and the D.C. Circuit that laches is applicable to a case such as this. Section 14(3) of
the Lanham Act, 15 U.S.C. § 1064(3), provides that a petition to cancel a registered mark
because, inter alia, it has become generic, was obtained by fraud, or is disparaging, may be
brought “at any time”. With the D.C. Circuit’s Harjo opinion, there is now a split among the
circuits regarding this issue that could give rise to a cert petition. In addition, following the
Circuit Court’s original remand decision, a group of six Native Americans, all of whom only
recently reached the age of majority, filed a new cancellation petition with the TTAB. Although
this proceeding has been stayed pending the outcome of the Harjo lawsuit, it will be activated
in the event that the D.C. Circuit’s decision on laches stands.

We do not believe that the issues raised in this case are going away. In the first place, there is considerable question as to the correctness of the rulings by the District Court and the D.C. Circuit that laches is applicable to a case such as this. Section 14(3) of the Lanham Act, 15 U.S.C. § 1064(3), provides that a petition to cancel a registered mark because, inter alia, it has become generic, was obtained by fraud, or is disparaging, may be brought “at any time”. With the D.C. Circuit’s Harjo opinion, there is now a split among the circuits regarding this issue that could give rise to a cert petition. In addition, following the Circuit Court’s original remand decision, a group of six Native Americans, all of whom only recently reached the age of majority, filed a new cancellation petition with the TTAB. Although this proceeding has been stayed pending the outcome of the Harjo lawsuit, it will be activated in the event that the D.C. Circuit’s decision on laches stands.

It gets more interesting. This is consistent with the Harjo plaintiffs’ lawyer asserts (WaPo article), who suggests that one of the split is a Third Circuit decision authored by then-Judge Alito. Maybe there is a chance for this case to be heard.

Still haven’t seen the cert petition. No indication on the SCOTUS site that anything’s been filed.

Oh, and here’s an update on that notorious Quinn Emmanuel lawyer who got fired after emailing the firm questioning whether its successful representation of the Redskins was a good thing.

Commentary on Harrah’s v. NGV Gaming Cert Petition

Here is the reply brief from Harrah’s, and so the certiorari briefing is concluded (the petition is here, and the opposition is here).

I was a little surprised that SCOTUSblog lists this case as a petition to watch. I don’t see any of the indicators that this would be the kind of case to make the discuss list (including either party employing a member of the Supreme Court “bar” suggested by Prof. Lazarus), except for the very superficial circuit split alleged by the petitioners. Maybe they know something I don’t. [I suppose that SCOTUSblog might think this case is similar to Carcieri and MichGO, but I doubt it.]

I say the circuit split is superficial, but in reality it is illusory. The claimed split is between the Ninth and Second Circuits over the definition of “Indian lands.” The CA2 looked at “Indian lands” as used in the Indian Gaming Regulatory Act (25 U.S.C. 2711), and the CA9 looked at “Indian lands” as used in Section 81 of Title 25. The CA2 said that IGRA’s “Indian lands” definition includes both lands already held in trust and lands that will go into trust. The CA9 says that Section 81’s “Indian lands” definition includes only lands already held in trust. Both courts seem to have spent some time reading the dictionary on these cases — 1 U.S.C. 1 et seq. Looks like a split, right?

NO.

Hopefully, the SCT and their clerks will realize that no split exists at all. There are two reasons. First, the purposes of each statute distinguish them, even though they use the same words. Second, the operation and implementation of the different statutes prevent them from conflicting. I really don’t think the Dictionary Act would trump either of these two arguments, or else someone better go back and reargue D.C. v. Heller.

OK, the first point. Section 2711 is about management contracts that tribes might sign to manage a gaming facility. Tribes will and do sign these contracts long before any land is taken into trust, and even before a tribe owns a single acre. So it is the National Indian Gaming Commission’s responsibility to review these contracts could kick in before any land is taken into trust, making the CA2’s outcome reasonable. Section 81, on the other hand, is about tribes collateralizing lands held in trust for the tribes by the Secretary of Interior. There’s no reason to review a contract that potentially encumbers tribal trust land unless that land is already in trust, making the CA9’s decision reasonable.

Which leads to the second point, closely related — the Secretary cannot take land into trust without first determining that there are no encumbrances on the land (25 U.S.C. 465). So under Section 81, the Secretary doesn’t need to review a contract that might encumber trust land. In other words, the Secretary will never review a contract that might encumber “Indian lands” under Section 81 unless the land is already in trust. So, the CA9’s decision is the only decision possible. Conversely, IGRA expressly allows for the NIGC to review a contract regarding lands that will go into trust, often because the contract itself will provide the tribe funds to buy lands and ask the Secretary to take the land into trust.

And so, no circuit split.

I hope the Court isn’t confused by this one.